Vail Daily column: Sequester and recusal

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While not exactly the same, "sequester" and "recusal" are sort of BFFs. One, in fact, is often mistaken for the other. While what follows will explain what they are and how they're different, what they share is in common is that they each, in their own way, mean, in at least one incarnation, is "you ain't invited to the party."

Allow me to explain.

First let's distinguish legal sequestration from the financial mess in Washington. As you will recall, way back in 2011 the legislature and the president were locked in a WWF-like tussle over spending cuts and taxes. Yes, I know, it seems that some things never change. In any event, what our elected representatives determined was to kick the financial can down the road, employing a device they termed - you guessed it - "sequestration."

In the paralytic-Washington sense, what this means is that a series of automatic, across-the-board cuts to government agencies totaling $1.2 trillion will take place over the next 10 years. The cuts will be split 50-50 between defense and domestic discretionary spending. This has both much and nothing to do with legal sequestration.

What it has nothing in common with is this: In Washington, "sequestration" is all about the money. In law, "sequestration," were it a being, wouldn't give a gnat's back side about things fiscal. Well, in one sense anyway, but, give me just a sec, and I'll explain.

What was "set apart" in Washington goes back to the 2011 standoff over the U.S. debt ceiling, when Republicans in Congress demanded spending cuts in exchange for giving the Obama administration the needed legal headroom to pay the federal government's obligations to its bondholders. In the end, Congress and the administration agreed to more than $2 trillion in cuts (a trillion, by the way, is a thousand-thousand million). About half of the cuts were laid out in the debt-ceiling bill and the rest were to be imposed through sequestration - in other words, it was "set apart" to deal with another day. And yes, the day of reckoning is coming soon - March 1 to be precise. If the Congress and the president can't figure out what to cut by then, the automatic cuts, like una bomba, are triggered. That which was set apart comes home to roost, perhaps in little exploded bits.

Legal sequestration ain't the same. What "to sequester" means at law, in effect, has two meanings. First, to sequester means "to isolate" which is resonant of the plain English meaning of the word. To "sequester" jurors for example, is to isolate them from contact with the public during the course of a sensational or high-visibility trial. A witness may be "sequestered" from a proceeding until it is his time to testify so he is not prejudiced by other parties' testimony. He is "set apart" and isolated before it's his turn on the stand so what he offers to the court is untainted.

What legal sequestration can also mean is the process by which property or funds are attached pending the outcome of litigation. In other words, it is the process by which property or funds in dispute may be glommed on to and "set apart" pending the outcome of the lawsuit.

So what the Washington sense of the word and the legal meaning share is that an identifiable thing or person is "set apart" or "isolated." It's carved out and set aside. If it's a person who is isolated, colloquially speaking, he ain't invited to the shindig. Not yet at least. He twiddles his thumb alone until he's invited to join in.

So what about recusal? Well, in a sense, it's another way of dis-inviting someone from the goings-on. "Recusal" (or, more formally, "recusation") is the process by which a judge is disqualified (or disqualifies himself) from hearing a lawsuit because of interest (or sometimes, the perception of interest) or prejudice (or the perception of the same) in the matter being tried.

A quick example might help. Say Judge Learned Hand (and, yes, there was in fact a distinguished judge and legal philosopher by that name in the middle 20th century. His cousin - also a distinguished jurist was a fellow by the name of August Hand; but that's a tale for another day), owns a fair share of stock in a small corporation and that corporation is being sued. Recusal in such circumstance would likely be appropriate, the natural instinct (or at least perception) being to that Judge Hand might tilt in favor of the corporation in order to protect his personal, if not the public weal.

Sequestration and recusal at law can mean, in a sense, your dance card to the gala was punched. Both are devices by which the integrity of the court and its proceedings are preserved and insure that justice has its best chance of being fairly served.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, robbins@slblaw.com or robbins@colorado.net.